Case Document

100%Judiciary

HCAL 1019/2021

[2026] HKCFI 2256

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1019 OF 2021

BETWEEN
	Yuniar	Applicant
	and
	Torture Claims Appeal Board	Putative
		Respondent
	and
	Director of Immigration	Putative
		Interested Party

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

	consideration of the documents only; or
	consideration of the documents and oral submissions by the applicant in open court;

Order by Deputy High Court Judge Michael WONG:

1. On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board” and the name of the putative interested party be amended to “Director of Immigration”.

2. The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the applicant:

The Leave Application

1.By way of Form 86 dated and filed on 20 July 2021, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 25 June 2021 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL001019_2021_files/the_Board's_Decision.pdf

2.The Board rejected the applicant’s claims for non-refoulement protection on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Accordingly, the Board dismissed the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 22 October 2020, which rejected the applicant’s non-refoulement claim, and confirmed the same.

Amendments

3.In Form 86, the applicant named the Board as both the putative respondent and the putative interested partybut spelt the Board’s name wrong.

4.In fact, the Board should only be named as the putative respondent and the Director should be named as the putative interested party.

5.This court therefore makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and the name of the putative interested party to “Director of Immigration”.

The applicant’s case

6.It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.

7.In sum, the applicant claimed for non-refoulement protection because if refouled to Indonesia, she would be harmed or killed by Ahmad or her mother since she had refused to obey her mother and marry Ahmad.

Oral hearing

8.The applicant requested for an oral hearing of the Leave Application, and her case was heard on 9 April 2026.

9.When this court asked the applicant for the grounds of her intended judicial review, the applicant merely said that she did not want to go back to Indonesia because her life was in danger if she went back, and she wanted to stay in Hong Kong with her child, who is also a non-refoulement claimant, but the Board wanted her to go back with her child.

Grounds for judicial review

10.The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

11.The applicant did not advance any ground for her intended judicial review in Form 86, nor in her supporting affirmation dated 20 July 2021. She merely mentioned in the affirmation that she was not satisfied with the Board’s Decision because she could not go back to her country and her life was not safe there.

12.As aforesaid, at the oral hearing, she did not advance any valid ground for her intended judicial review either, as she only mentioned that her life was in danger in Indonesia and she wanted to stay in Hong Kong with her child.

Discussion

13.First of all, the applicant’s danger upon refoulement had been assessed but rejected by the Board. If the applicant intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review.

14.Her wish to stay in Hong Kong with her child is not a valid ground for judicial review either.

15.The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).

16.Thus, despite that the applicant did not advance any valid ground for the intended judicial review, this court will still scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.

17.In assessing the applicant’s appeal/petition, the Board held a hearing on 24 March 2021. The applicant was present at the hearing. Thus, the applicant did have a chance to present her case to the Board in person.

18.As can be seen from paragraph 33 of the Board’s Decision, the Board found a number of discrepancies between her written and oral evidence regarding her claims. The Board found the many inconsistencies indicated that the applicant had exaggerated the risks and danger she faced on her return to her country. Her credibility was low and there was insufficient or no credible evidence to establish that she would be at risk on her return to Indonesia or that the danger was present and personal since neither her mother had ill-treated her before nor had Ahmad threatened to harm her in any way before or after she left her home village. The applicant was also not harmed during her home leave in Surabaya in September 2017.

19.The Board thus concluded that the applicant’s claim lacked credibility and was fanciful.

20.Further, the Board found that in the unlikely event that the applicant should be harassed or threatened with harm, she should be able to obtain protection from the police or seek assistance at the abuse women’s centres in Indonesia or lodge a complaint with the Indonesian National Ombudsman, the National Commission on Human Rights. The applicant had in fact never sought assistance from the police or the authorities before she left Indonesia.

21.The Board also found internal relocation to be a feasible option for the applicant. The Board found that the applicant should be able to live and work anywhere in Indonesia, particularly in one of the larger cities away from her home village where she would stand a better chance of finding employment.

22.In view of its findings, the Board did not consider that the applicant would face a real risk of any of the proscribed forms of harm should she return to Indonesia. Thus, the Board rejected the applicant’s claims for non-refoulement protection in Hong Kong.

23.The assessment of evidence, country of origin information and risk of harm was primarily within the realm of the Board. The Board was entitled to make its own decision. The applicant’s alleged dangerous situations had been fully considered but rejected by the Board. This court finds nothing wrong or unreasonable in the way the Board reached its decision.

24.Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.

25.In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

26.For reasons aforesaid, the Leave Application is dismissed.

Dated the 22^nd day of April 2026

( Teresa NG )
for Registrar, High Court

Where leave to apply has been granted, applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the respondent’s evidence

Notes for the applicant: If leave has been granted, the applicant or his solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent/Handed to the applicant/the applicant’s solicitors on: 22 April 2026 Applicant’s ref. no: Nil		Sent/Handed to the putative respondent / the putative respondent’s solicitors / such putative interested parties as may be directed by the Court / the putative interested parties’ solicitors on: 22 April 2026 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative respondent’s ref. no.: USM 17345/20/11/13/I1891 Director of Immigration Putative interested party’s ref. no.: QA T/C 537/20 (formerly RBCZ 10467/20) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)